SAN FRANCISCO - After hearing attorneys from both sides argue their cases today in the landmark case, Nordyke v. King, the U.S. 9th Circuit Court of Appeals has an historic task before it in answering the civil rights question of whether individual civil rights enshrined in the Second Amendment to keep and bear arms must be recognized by states and not just the federal government. The case also addresses free speech and equal protection rights of gun show owners.
It started nearly a decade ago in 1999, when the Alameda County Board of Supervisors passed a gun-ban ordinance with the intent to eliminate gun shows from Alameda County. After being forced to cancel scheduled shows, T&S Gun Shows, owned and operated by Russell and Sally Nordyke, they along with civil rights activists, gun collectors and enthusiasts filed suit, claiming the county was unconstitutionally violating their civil rights guaranteed under the U.S. Constitution.
“The larger impact of this case is to ensure that the Bill of Rights, including rights under the Second Amendment, applies to everyone,” Donald Kilmer, lead attorney for the plaintiffs, said. He said the County’s intent always has been to stifle a gun enthusiasts forum and a type of speech that those specific elected officials disagreed with. “The county concedes that my clients have always operated their shows in compliance with state and federal laws, and that there has never been any gun-related violence at one of their shows,” Kilmer said.

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TIME LINE OF NORDYKE v. KING

1999

• After the Alameda County supervisors instructed the county attorney to devise an ordinance to ban gun shows, supervisors later passed an ordinance making it illegal to possess firearms on county property. The ordinance also forbid the presence of firearms at gun shows, effectively banning gun shows at the fairgrounds.
• Russell and Sally Nordyke, Operators of T&S Gun Shows, contacted attorney Donald Kilmer after the county cancelled their shows because of the ordinance. Together, with a group of gun collectors and enthusiasts, they filed suit in federal court against King and the other supervisors challenging the ordinance on the grounds it violated the First and Second Amendments of the U.S. Constitution and was preempted by state law already regulating firearms.

2000
• The trial court upheld the County ordinance. The Nordykes appealed, and the appellate court sent the preemption issue to the California Supreme Court.

2002
• On appeal, the California Supreme Court found the ordinance was not preempted by state law - effectively sending the case back to the federal courts for the First and Second Amendment arguments.

2003
• The federal Appellate court refused to hear the Second Amendment argument because previous law in this circuit held the right to keep and bear arms was not an individual right. (THIS DECISION IS NOW ON APPEAL)
• The Federal Appellate Court denied the First Amendment claims but left open the possibility for an “as applied” challenge, so the case went back to the trial court for further argument.

2007
• The federal trial Judge, using the rational relationship test, denied the Nordyke’s First Amendment Free Speech claims based on the finding that the ordinance was not specifically targeted at speech. (THIS DECISION IS NOW ON APPEAL)

2008
• In District of Columbia v. Heller, the U.S. Supreme Court for the first time defines the meaning of the Second Amendment and held that it is, indeed, an individual right.
• Since the District of Columbia is a federal enclave. The Court left undecided if this individual right also is incorporated to the states through the 14th Amendment, which would overrule the previous 9th Circuit case law used in the 2003 decision stating that the right to keep and bear arms is not an individual right. (PARTIES ASK THAT THIS BE DETERMINED)
ISSUES CURRENTLY BEFORE THE COURT

Before the court are four issues. The first applies to general individual civil rights of every individual; the other three apply to this case and to gun show owners:

I. Does the Second Amendment to the Constitution of the United States guarantee individual civil rights that must be honored by the states?

II. If so, does the Alameda County Ordinance unconstitutionally violate the Nordyke’s Second Amendment rights?

III. Does the Alameda County Ordinance unconstitutionally violate the Nordyke’s constitutionally protected right to freedom of speech/expression by banning guns from gun shows - effectively eliminating that form of public forum?

IV. Does the Alameda County Ordinance violate constitutional equal protection rights when it allows other groups to have firearms, but not gun shows?

Don E.J. Kilmer, Jr., Lead Attorney for Plaintiff/Appellants
Donald Kilmer is an active family law and civil rights lawyer based in the Willow Glen district of San Jose, California, and is an adjunct professor of constitutional law at Lincoln Law School of San Jose.
As a civil rights lawyer he has represented local bay area citizens in cases involving self-defense and police misconduct. Donald Kilmer attended San Jose State University and Lincoln University - The Law School. Donald is the author of the amicus brief for the U.S. Supreme Court’s District of Columbia v. Heller arguments on behalf of Shelly Parker, an African American woman seeking to protect herself from death threats of drug dealers. He is associated with many civil rights groups, including the Golden State Second Amendment Council and the Madison Society.

Don B. Kates, Co-Counsel for Plaintiff/Appellants
Don Kates is a retired professor and noted scholar of constitutional and criminal law, and a criminologist associated with the Pacific Research Institute in San Francisco, California.
As a civil liberties lawyer he has represented gun owners challenging the constitutionality of certain firearms laws. Don B. Kates, Jr., attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler. Thereafter, he focused on civil rights and police misconduct litigation for the federal War on Poverty program.

Should the issues go our way it's like a dream come true. Incorporation can change a whole lot of onerous gun laws in the state of California. It can't come soon enough, and I'm looking forward to the courts finalizing its decision.

No time to update the rest of us who couldn't go. We need our fixes... like every minute.... I hate waiting.

__________________
Look at the tyranny of party -- at what is called party allegiance, party loyalty -- a snare invented by designing men for selfish purposes -- and which turns voters into chattles, slaves, rabbits, and all the while their masters, and they themselves are shouting rubbish about liberty, independence, freedom of opinion, freedom of speech, honestly unconscious of the fantastic contradiction... Mark Twain

Any idea on when a decision will be made? How long does the 9th Cir. usually take?

__________________
"If a man hasn't found something worth dying for, he isn't fit to live." - Martin Luther King Jr.
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"You have to be willing to swing your nuts like a deadblow hammer to put these jackasses in their place." - AJAX22
"The best defense against usurpatory government is an assertive citizenry." - William F Buckley Jr.

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick

It was hard to tell. The court room was full and at least 45-50 of us folks had to go into the overflow courtroom where we saw the proceedure unfold via live video feed. No one was wearing name tags nor were there any protesters either!

Hunter

PS I believe Calgunners do qualify as citizens!

__________________"The cat is out of the bag. We cannot buy back all of the series clones. We do not want to allow registration, so I think we're stuck with SB 23 being the vehicle to regulate them"---- Dep. Attorney General A. Merrilees writes to Brady Center on May 15, 2006 @ 11:22 am

The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.' and that `Property is surely a right of mankind as real as liberty.'- John Adamshttp://www.usdebtclock.org/

Were there any other gun forum, organizations, associations or citizens in attendance?

Vick

I sat next to Mark Towber of Golden State Second Amendment Council of Santa Clara County.

/Cap

__________________

Quote:

Originally Posted by Lex Arma

In the final analysis, rights in a Republic are protected by the people themselves. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.... Keep educating your neighbors and friends about the legacy of freedom that founded this nation and remind them what it takes to keep it free. --Don Kilmer

This is the first time I have ever set foot inside a courtroom and I'm an Engineer by training so take what I'm about to say w/ a large boulder of salt.

My feeling watching and listening to the back and forth is that the Alameda Law will fall - our side made a very convincing case that the Law is being unfairly targets a class of citizen, the law is being unfairly applied, and that the country overstepped their bounds.

However, I didn't get the feeling that the court was very gung-ho about taking on incorporation of the 2nd. They asked our side repeatedly how this law violates the plaintiff's RKBA and I didn't feel like the judges bought it. Though they did pepper the other side about RKBA (including how they thought the ruling might go if this case were being tried in DC).

But keep in mind that these arguments are but a small portion of the entire case. There are reams and reams of documents which may be more or less convincing than what I saw today.

Justice Scanlon's opening remark, before Don Kilmer started, suggested the justices were very interested in the incorporation issue.

I scribbled notes most of the way; I read the Justices' questions as pretty favorable. Both Kates and Kilmer were pretty comfortable at the panel after dinner that incorporation was likely.

Don Kilmer also said he expects the decision in about 3 months; it might be a bit earlier, but he'd be surprised if it were much longer.

So, end of March to mid-April for this step.

Caution: this is still going to be a long process. Panel reminded us that post-Civil War, after 13th amendment and associated legislative actions, states still tried to ignore the changes. We can expect no less in this century.

It was awesome. I have never been in a courtroom before and this was amazing. I am so happy to belong to this organization and to all of the friends that I have made. So Far.

- G

__________________
A vote is like a rifle: its usefulness depends upon the character of the user.
- Theodore Roosevelt

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.
- Ronald Reagan

this was awsome. I had soo much fun. I believe there were antis in the overflow court room, think but not sure. They gave me a funny look when I was talking bout my ak pistol to some other calgunners. Was uncomfortable in the suit though. Would have been more comfortable in jeans and a t-shirt but it was all worth it.

this was awsome. I had soo much fun. I believe there were antis in the overflow court room, think but not sure. They gave me a funny look when I was talking bout my ak pistol to some other calgunners. Was uncomfortable in the suit though. Would have been more comfortable in jeans and a t-shirt but it was all worth it.

at least you had your hat

__________________
"I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson

That was awesome Great seeing you all !
"how do you have a gunshow without guns ?"

Hah, Alameda's guy wanted them sold in the parking lot!!

__________________

Bill Wiese
San Jose, CA

CGF Board Member / NRA Benefactor Life Member / CRPA life memberNo postings of mine here, unless otherwise specifically noted, areto be construed as formal or informal positions of the Calguns.Netownership, The Calguns Foundation, Inc. ("CGF"), the NRA, or my employer. No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer.

Good show in court. I almost felt sorry for the poor guy from the county. A gunshow with no guns? The Second Amendment gives a right to possess firearms but not a right to buy them? Good stuff. Wish I could have stayed for drinks and dinner.

He wouldn't concede to anything. He also didn't seem to understand a couple of the judge's hypothetical questions. None of the other side looked happy after it was over. The LCAV people left so quickly that the reporter from the Daily Journal couldn't even find one to interview.

He wouldn't concede to anything. He also didn't seem to understand a couple of the judge's hypothetical questions. None of the other side looked happy after it was over. The LCAV people left so quickly that the reporter from the Daily Journal couldn't even find one to interview.

They were very outgunned

__________________
"I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson

__________________
"I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson
"Thou shalt not interfere with the Second Amendment rights of "law-abiding" citizens who want AK-47s only to protect hearth and home." - Paul Helmke finally gets it :)

Thanks again to Gene, JDBerger, Bill, Ben, and the rest of the CGF for making this happen.

And a HUGE thanks to the Dons. We all owe you big time.

__________________If you live in the Sacramento area, check your Local Forum frequently to see how you can help restore Gun Rights.
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The County really didn't argue that point with any sense of reasonableness. Their stance was that you can have a gun show without guns, but any actual transfers or inspection could occur immediately after the "gun show" off County property.

So what do we look at at the gun shows...pictures/drawings of the guns? Then its "meet me across the street and we can do the deal"?

Absurd.

__________________It is dangerous to be right when your government is wrong. -Voltaire

Good people sleep peaceably in their bed at night only because rough men stand ready to do violence on their behalf.